“Recognizing Race” and the Elusive Ideal of Racial Neutrality

David A. Strauss*

Response to: Justin Driver, Recognizing Race, 112 Colum. L. Rev. 404 (2012).

I

In 1960, Louisiana enacted a statute requiring that the race of any candidate for office be listed on the ballot opposite the candidate’s name.¹ In Anderson v. Martin,² the Supreme Court had no difficulty declaring that statute unconstitutional. The Court said that the case had “nothing whatever to do with the right of a citizen to cast his vote for whomever he chooses and for whatever reason he pleases or to receive all information concerning a candidate . . . .”³ The problem, the Court said, was that “by directing the citizen’s attention to the single consideration of race or color, the State indicates that a candidate’s race or color is an important—perhaps paramount—consideration in the citizen’s choice, which may decisively influence the citizen to cast his ballot along racial lines.”⁴ The Court also rejected the argument that the statute “is nondiscriminatory because the labeling provision applies equally” to persons of all races.⁵ “[W]e view the alleged equality as superficial,” the Court said.⁶ “Race is the factor upon which the statute operates and its involvement promotes the ultimate discrimination which is sufficient to make it invalid.”⁷

The decision in Anderson v. Martin was obviously right. In context, the Louisiana law was part of a system of racial discrimination against African Americans, as the Court recognized when it declared the “alleged equality” to be “superficial.”⁸ Beyond that, it seems very problematic for a state, in any circumstances, to list a candidate’s race on the ballot. That would be true even if other things were listed—for example, a candidate’s party affiliation (as is routinely done), a candidate’s position on a critical issue (as has sometimes been done),⁹ a slogan of the candidate’s choosing, the candidate’s home town within the election district, or other bits of information that might influence a voter. Race, and some other characteristics (like religion), still seem off-limits.

But why, exactly? What is the principle underlying Anderson v. Martin, and how far does it extend? Candidates’ races seem to matter to voters, as the Court in Anderson implicitly acknowledged. And it is certainly not always a bad thing to take note of a candidate’s race. Senator John McCain’s concession speech in 2008, when he lost the presidential election to then-Senator Obama, talked about the significance of Senator Obama’s race, explicitly and movingly. The message that Senator McCain conveyed was as far removed from what the Court imputed to the Louisiana statute as it is possible for something to be.¹⁰ It is certainly wrong to say that people’s race should always be emphasized—always be brought before our eyes—but it also seems mistaken to say that it should never be.

Professor Justin Driver’s thoughtful and elegant Essay¹¹ can be seen as a meditation on these questions. The Essay displays the characteristic virtues of its author’s work.¹² It tackles a subject that has not been systematically investigated, but should be. It gives us a careful and illuminating picture of the historical context, where that’s relevant. And its sharp analytical insights are beholden to no preconceptions. Professor Driver follows the arguments where they lead.

Professor Driver is concerned specifically with judicial opinions. His question is: In what circumstances should opinions identify the race of the individuals involved? Anyone hoping for an unequivocal answer—“routinely” or “never”—will be disappointed. Rather than trying to give that kind of answer—which would be sure to be wrong, as Professor Driver shows—he describes how the question should be approached. He wants judges to be reflective, not instinctive, about when they mention race. He wants them to be sure they have thought through the reasons for identifying the race of the people they discuss in their opinions, and the implications of doing so.

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